O'Riordan v. Barr, 925 F.3d 6

Background

Petitioner Dylan O'Riordan, an Irish national, entered the U.S. as a child via the Visa Waiver Program (VWP) and remained in the U.S. for over seven years, later fathering a U.S.-citizen child and marrying a U.S. citizen after issuance of his removal order.
DHS served a Final Administrative Order of Removal finding he entered under the VWP and overstayed; his ESTA record in the administrative file marked that rights were waived and indicated a third-party prepared the form when he was 12.
O'Riordan sought review in this Court after being detained and placed into withholding-only proceedings (which later terminated); DHS cancelled and reissued a removal order while proceedings and appeals were pending.
He asserted (1) insufficient evidence of removability and (2) a Fifth Amendment procedural due process claim: that as a child he could not knowingly waive greater process and thus was prejudiced by enforcement of the VWP waiver.
The Court found jurisdiction (constitutional mootness argument rejected based on petitioner’s stated intent to return and availability of relief) but proceeded to deny the petition on the merits.

Issues

Issue	Plaintiff's Argument (O'Riordan)	Defendant's Argument (Barr / DHS)	Held
Sufficiency of evidence of removability under VWP/overstay	Record lacks required I-94W and has date inconsistencies; Woodby clear-and-convincing standard not met	Record includes ESTA indicating waiver and entry, petitioner’s own acknowledgments on administrative forms, and no contrary claim of non-VWP entry	Court: Even under Woodby/substantial-evidence review, record supports removability; no basis to vacate
Statutory jurisdiction re: timeliness of petition when order later reissued	Petition from Sept. order was timely; November reissued order should not defeat review (or the petition ripened)	Government: earlier order not final; later order is operative; petition may be timely under ripening theory	Court: Declined to decide ripening definitively because merits dispose of case; proceeded assuming jurisdiction
Procedural due process: whether waiver executed on child’s behalf is unenforceable because not knowingly/intelligently made	Waiver signed/effected when petitioner was a child; cannot be binding; deprivation of greater process requires vacatur unless harmless	Waiver enforceable; even if not knowing, petitioner must show prejudice; Mathews balancing shows no entitlement to more process	Court: Assumed arguendo waiver might be invalid but petitioner failed to show prejudice; no presumption of prejudice applies here; claim fails
Prejudice: could petitioner have adjusted status or avoided bars but for summary removal?	Would have been eligible to adjust via LPR parents or via marriage and thus was prejudiced by lack of fuller process; also argues parents could have petitioned instead of using VWP	Statutory bar prevents VWP entrants who overstayed from adjustment on parent basis; petitioner wasn’t married at time of order; speculative that alternative admission would have occurred	Court: Parents-based adjustment unavailable to VWP entrants (immediate-relative rule); marriage did not exist at time of order; speculations about alternate entry or parental choices fail to show concrete prejudice; claim denied

Key Cases Cited

Woodby v. INS, 385 U.S. 276 (standard for deportation evidence) (discusses clear, unequivocal, and convincing standard)
Mathews v. Eldridge, 424 U.S. 319 (1976) (Due Process balancing test)
Johnson v. Zerbst, 304 U.S. 458 (1941) (waiver of constitutional rights must be knowing and intelligent)
Flores-Ortega v. United States, 528 U.S. 470 (2000) (presumption of prejudice when entire judicial proceeding denied in ineffective-assistance context)
Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001) (refused to extend Flores-Ortega prejudice-per-se to immigration waiver denials)
Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010) (speculative prejudice insufficient where alternative non-VWP entry uncertain)
Bradley v. Attorney General, 603 F.3d 235 (3d Cir. 2010) (similar analysis on prejudice/speculation and VWP consequences)
Urizar-Carrascoza v. Holder, 727 F.3d 27 (1st Cir. 2013) (standard of review for substantial-evidence review of removability)
Lima v. Holder, 758 F.3d 72 (1st Cir. 2014) (weight given to alien’s own admissions in administrative record)
Munoz-Monsalve v. Mukasey, 551 F.3d 1 (1st Cir. 2008) (prejudice requires showing the challenged practice likely affected hearing result)
INS v. St. Cyr, 533 U.S. 289 (2001) (context on importance of right to remain in U.S.)